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[2002] UKSSCSC CI_3925_2001 (28 October 2002)

 


PLH Commissioner's File: CI 3925/01

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Disablement Benefit

Appeal Tribunal: Newcastle

Tribunal Case Ref: U/44/228/2000/05537

Tribunal date: 30 April 2001

(Corrected decision: 13 July 2001)

Reasons issued: 30 April 2001

1. The decision of the tribunal sitting on 30 April 2001 (as purportedly corrected) is agreed by the Secretary of State to have been defective in law for the reason stated in the written submission of Ms J Finch on his behalf dated 16 September 2002 at pages 86-87. This is because, having originally decided that the claimant was suffering from prescribed disease A11 with a date of onset that fell within a period already covered by a subsisting decision on an earlier claim, it was not open to the tribunal to substitute a completely different date under its power to correct its own decisions, which is limited to clerical errors or accidental slips: CI 3887/99.

2. I accept that submission and as indicated in the direction given in this case on 13 August 2002 (which is also agreed by the Secretary of State, the claimant not making any observations in answer to the points raised) I exercise the power in section 14(8)(a) Social Security Act 1998 to give the decision I am satisfied the tribunal should have given on the basis of its own findings on 30 April 2001, namely that the claimant was then suffering from prescribed disease A11 and had been so suffering from 21 May 1998, with a loss of faculty identified as numbness, tingling and blanching of the fingers of both hands resulting from the prescribed disease and a disablement from that loss of faculty assessed at 7% from 3 September 1998 (the 91^st day) for life.

3. The reasons for having to substitute that date of onset for the earlier date originally identified by the tribunal were explained in paragraphs 2-6 of my earlier direction which (for convenience) are repeated here as follows:

"2. The decision of the Adjudicating Medical Authority on 20 May 1998 that the claimant had not been suffering from prescribed disease A11 (vibration white finger) at any time from 5 July 1948 down to and including that date (pages 22-26) was a decision on diagnosis for the purposes of industrial injury benefits under section 108 Social Security Contributions and Benefits Act 1992, made under regulation 46 of the Social Security (Adjudication) Regulations 1995 SI No 1801 which was part of the special provisions in Part IV section A of those regulations for deciding diagnosis questions in prescribed disease cases.

3. The decision of 20 May 1998 thus became final as regards the question of diagnosis (i.e. whether the disease was present at all) over the whole period down to its own date, by virtue of sections 58 and 60(1) Social Security Administration Act 1992.

4. The only relevant ways in which the question of any diagnosis of the same disease for the same claimant could be reopened as regards any part of that period once the decision of that question had become final would have been if:

(1) the decision of 20 May 1998 had been appealed, or reviewed (e.g. for error or mistake of fact) under the 1992 Act while it was still in force; or

(2) the decision had been superseded by a further decision of the Secretary of State (e.g. for error or mistake of fact) under the Social Security Act 1998, applicable to industrial injury and disease cases from 5 July 1999.

However none of those things had happened in this case before the date of the tribunal.

5. The Secretary of State must therefore, it seems, have been right in submitting to the tribunal that the question of whether the claimant had been suffering from the prescribed disease at all at any point down to 20 May 1998 (and thus necessarily also whether he could be held to have any loss of faculty from it during that period) had already been conclusively decided against him by the competent authority, and so was outside their jurisdiction on the appeal arising out of the fresh claim for the same benefit he made on 8 September 2000.

6. This claim was a further claim for disablement benefit, for the same disease as had previously been refused: (see page 12 "This is my claim for industrial injuries disablement benefit"). The case of CI 6027/99 referred to in an earlier direction makes clear that it does not support any reopening of earlier diagnosis decisions on second or subsequent claims for disablement benefit for the same disease: see the express qualification about this in paragraph 14(1) of the decision."

4. The appeal is allowed and my decision substituted accordingly.

(Signed)

P L Howell

Commissioner

28 October 2002